
Glass t. 



Book 






In the Matter of the Arbitration of the Boundary Dispute 

Between the Republics of Costa Rica and Panama 

Provided for by the Convention Between Costa 

Rica and Panama of March 17, 1910. 

W 

Opinion and Decision of Edward Douglass White, Chief Justice 
of the United States, acting in the capacity of Arbitrator 
as provided in the Treaty aforesaid. 



Washington, September 12, 1914. 



Before proceeding to a consideration of the subject for 
decision, to avoid breaking continuity of statement, it is 
observed that a motion made by one of the parties to strike 
out certain documents because not filed in duplicate, and 
a motion by the other party to eliminate certain papers 
because they are said to be partial and hence unauthor- 
ized, have both been considered and found irrelevant to the 
determination of the case and the motions are therefore 
overruled without further statement on the subject. 

Moreover, at the threshold I say that when the duty of 
considering this case as provided in the treaty was under- 
taken, it was understood that all the documents and 
papers in the Spanish language would be translated by the 
parties into English, and therefore such documents will be 
referred to in the translations which the parties have fur- 
nished. 

To state at the outset, first, the geographical situation of 
the two countries, parties to this arbitration, and, second, 
to give the history of the nature, origin, development and 
undisputed facts of the controversy, will conduce to a 
clearer appreciation of the matters to be passed upon. In 
doing so for the purposes of the rights with which this ar- 
bitration is concerned, Costa Eica will be taken as repre- 



2 

senting not only rights enjoyed by it in its own name, 
but all those concerning the matter here in dispute which it 
possesses as the successor of a prior government, the Re- 
public of Central America; and Panama will likewise be 
taken as representing for the same purposes, not only its 
own rights, but also those of its governmental ancestors, 
the Republic of Colombia, the Republic of New Granada, 
the United States of Colombia and the Republic of Colom- 
bia. 

First. The two countries have an extended coast line on 
the Atlantic and the Pacific Oceans, the territory between 
the oceans being divided by the main range of the Cor- 
dilleras. Not taking into account any conflict as to bound- 
ary, if any there be, between Panama and the Republic 
of Colombia lying southeast of Panama, the territory of 
Costa Rica and Panama on the Atlantic extends from the 
upper boundary of Costa Rica at about the eleventh paral- 
lel of latitude in a southeasterly direction down to about 
8° 40', a distance not considering the sinuosities of the coast 
approximating 450 miles. 

Second. For seventy-five or eighty years there were con- 
troversies between Panama and Costa Rica or their prede- 
cessors concerning the extent of their territorial authority. 
All the disputes referred to arose from two subjects differ- 
ing fundamentally; the one, a contention on the part of 
Panama that its territorial sovereignty embraced the entire 
Atlantic coast, not only along its own front, but also along 
the front of Costa Rica and Nicaragua, which country lies 
above Costa Rica, since the claim of sovereignty terminated 
only at Cape Gracias a Dios, which was practically the up- 
permost boundary of Nicaragua dividing that country from 
Honduras. This claim was based upon what was asserted 
to be the operation of a Spanish Royal Order of 1803. The 
other claim, distinct from the former because resting upon 
independent considerations and which would require to be 
disposed of even if the former claim was held to be un- 
founded, concerned the boundary dividing the territory of 
the two countries in the expanse from the Atlantic to the 
Cordilleras, across the same and on the Pacific side. So 



By Transrer" 

MAR 17 1915 /5^-/£5>vb 



; far as the entire territorial claim is concerned and the 
. points in the mere boundary claim which concern the cross- 
ing of the Cordilleras and the line of boundary on the 
Pacific side, no further statement need be made for reasons 
hereafter to be set forth. The aspect of the controversy 
therefore necessary to be stated here involves only the 
boundary between the two countries in the territory sit- 
uated on the Atlantic side between that ocean and the range 
of the Cordilleras. 

On the part of Costa Rica in substance from the begin- 
ning its lower boundary was claimed to embrace an island 
in the Atlantic Ocean designated as Escudo de Veragua 
opposite the mouth of a river named as the Chiriqui, which 
emptied into the Atlantic shortly below what was known as 
Almirante Bay, and following the course of that river to 
the Cordilleras. This claim of boundary, if valid, would 
necessarily have deprived Panama or its predecessors of a 
large area of territory over which that country asserted 
jurisdiction. This assertion of boundary right made by 
Costa Rica was based, besides a reference to other Spanish 
documents or decrees, especiallly on what was asserted to 
be the result of certain Spanish Cedulas or Capitulacions 
of 1540, 1573 and 1600. Again for reasons which will here- 
after be made apparent, the facts concerning the rightful- 
ness of this claim of boundary on the part of Costa Rica 
need not be further enumerated. 

On the other hand, the claim on the part of Panama or 
its predecessors was that the boundary line was made by a 
river which took its source in the Cordilleras and flowed 
into the Atlantic at a point much above Almirante Bay. The 
river which it was thus contended by Panama constituted 
the boundary was designated by various names and the 
point at which it emptied into the Atlantic would seem for 
a considerable time to have been in doubt. There is no 
ground, however, for real dispute that it came finally to 
pass that Panama recognized that the stream which it re- 
lied upon and continued to insist constituted the boundary 
along its entire course from the mountains debouched in 



the Atlantic Ocean shortly below a point indifferently 
designated as Punta Carreta or Punta Mona — indeed that 
such river was the first stream emptying into the Atlantic 
below that point — and that at its mouth at least the stream 
in question was known as the Sixaola. The boundary 
dispute therefore involved the territory lying between 
the two rivers contended for in their courses as they flowed 
from the mountain range in which directly or indirectly 
they took their sources to the ocean, and the area, and ex- 
tent of the controversy, therefore, depended in the nature 
of things upon the direction of the flow of the bounding 
rivers which the parties had in mind and upon which they 
respectively relied as constituting the division between the 
two countries. 

As the statement just made in a general way points to 
the questions of fact and law to be passed upon, it might 
well be taken as adequate for the purposes of the mere out- 
line which I at the outset indicated, and therefore would 
render it necessary now to make no further statement 
before coming to an analysis of the questions of law and 
fact for decision under the present arbitration. 

But as when the discharge of that duty is reached it will 
become apparent that in its last analysis every issue for 
decision will involve an appreciation of the facts concern- 
ing the claim of river boundary relied upon by Panama, 
the assertion of the river boundary contended for by Costa 
Eica being, as I have said, out of the case, in order to avoid 
repetition and to clear a broad way leading to the merits, 
I propose to state the facts concerning the essential matters 
which require to be considered, concerning the claim of 
Panama under a third heading as follows : 

Third. The origin of the claim made by Panama, the acts, 
dealings and admissions of that Government or its prede- 
cessors concerning such claim, the negotiations for a prior 
arbitration, the environment of such negotiations, the 
treaties made agreeing to the same, the award, the course 



taken by the parties in executing it, the controversy which 
resulted, either concerning its interpretation or its binding 
force, the entering into the arbitration treaty now being 
executed, and such additional facts as are found in this 
record as may be considered necessary to be taken into 
view in connection with the questions of law which require 
to be passed upon. 

To the end of orderly consideration I state the subjects 
which this general proposition embraces separately under 
four headings enumerated (a), (b), (c) and (d). 

(a) The source of the boundary claim of Panama and 
Panama's official assertions of its right by way of nego- 
tiations or attempts to negotiate with Costa Rica with ref- 
erence to the same or otherwise. 

There is no document in the record upon which the 
assertion by Panama or its predecessors to the river bound- 
ary above referred to can be said to rest as an original 
muniment of title, and therefore the non-existence of any 
document of that character may be assumed. I say this 
because although Seiior Madrid, a Colombian publicist, 
in 1852 in a report made to the Colombian Minister of 
Foreign Affairs declared that official documents to such 
effect existed, Seiior Borda, another Colombian publicist, 
as late as 1896 in a work prepared officially for the use 
of the Colombian Government declared that no such official 
documents had been found and could not be said to exist 
unless they were considered to be embraced by two alleged 
maps which were referrd to. 

But without reference to the source of the title, the 
existence of the dispute as to boundary at an early date 
is clearly shown, since in 1825 Costa Rica as a state of 
the United Provinces of Central America in its Consti- 
tution declared its boundary to be the Escudo de Veragua, 
the island opposite the Chiriqui River which, as I have said, 
is the boundary now relied upon by Costa Rica. And in 
the same year, presumably as the result of a dispute con- 
cerning this boundary, the Republic of Colombia (Panama) 
and the United Provinces of Central America (Costa Rica) 



entered into a convention by which they obliged themselves 
"to respect the limits of each other as they now exist," 
and expressed their purpose to fix their boundaries upon 
that basis and contemplated a future agreement, or con- 
vention to give effect to that purpose. The provisions thus 
referred to were embraced in Articles VII and VIII of the 
convention. There was no express agreement between the 
parties for the settlement or demarcation of the territorial 
claim as to sovereignty over the coast up to Cape Gra- 
cias a Dios, although Article IX of the convention con- 
tained a provision for a modus vivendi between the 
parties concerning such claim. 

Clear as is the text of the treaty in question on the two 
distinct subjects stated, if there were room for obscurity it 
would be greatly illumined by a consideration of the nego- 
tiations which preceded the adoption of the treaty. I say 
this because in those negotiations a proposition on the 
part of Colombia (Panama) to adjust or compromise the 
larger territorial claim on a basis stated was promptly 
rejected by Costa Rica, and on the other hand a proposi- 
tion made by the representative of Colombia that "as to 
boundaries it is necessary to hold to the uti possidetis of 
1810 or 1820 as may be desired," was promptly accepted 
by Costa Rica, thus indicating why as to the larger claim 
nothing but a provision for a modus vivendi was inserted, 
while as to the boundary claim proper a basis for its 
adjustment was agreed upon and a declaration of the 
purpose to execute in the future that agreement was made. 
What exactly was the possessory boundary relied upon as 
then existing does not appear. Subsequently, the con- 
templated purpose of delimiting the boundary stated in the 
convention not having been carried out, that is in 1836, the 
Republic of New Granada (Panama), in establishing a 
new territory called Bocas del Toro fixed the limits of that 
territory on the Atlantic coast from the river called Con- 
cepcion up to the mouth of a river described as the Culebras 
and then "on the northwest [that is, from the mountains 
to the mouth of the Culebras] by the frontier line which 



separates on that side the Kepublic of New Granada from 
that of Central America.' ' It is apparent that this de- 
scription, while it amounted to an attempt to definitely fix 
a line of boundary on the Atlantic coast at the entrance 
of the Culebras River, did not define the line of that bound- 
ary from the point of the mouth of that river to the main 
Cordilleras, but left it to follow the course of the exist- 
ing boundary line between the two countries — an omis- 
sion which was presumably caused by the fact that by Ar- 
ticles VII and VIII of the Convention of 1825, as we have 
seen, the line of such boundary was to be determined by 
the application of the doctrine of uti possidetis and the 
subsequent demarcation which was contemplated but which 
had not taken place. It is to be observed, however, that 
while the line from the mouth of the river to the mountains 
was thus left open to be marked, the provision clearly 
points out that the line of boundary or frontier as it then 
existed and as it was understood between the parties, con- 
sidered in its trend from the mountains to the mouth of the 
river, ran in a northeasterly direction, or, conversely, from 
the mouth of the selected river to the mountains, in a south- 
westerly course. 

Following the assertions of right on behalf of Costa Rica 
to the southern boundary at the Chiriqui River, as at the 
outset stated, and of Panama to a northern boundary at the 
mouth of the river called the Culebras, running from the 
mountains to the ocean on a line having the course above 
indicated, many subsequent negotiations occurred which we 
outline briefly as follows : 

In 1856 a treaty was drawn between New Granada (Pan- 
ama) and Costa Rica, by which the northern boundary be- 
tween the two countries on the Atlantic was fixed by a river 
named the Doraces from its source in the Cordilleras 
"down-stream by the middle of the principal channel of 
this river until it empties into the Atlantic." When the 
Congress of New Granada (Panama) came to act upon this 
Treaty it Refined the mouth of this river in the Atlantic 
as being "the first river which is found at a short distance 



8 

to the southeast of Punta Carreta [Punta Mona]." As a 
result of this definition the Treaty was not ratified because 
Costa Rica declined to agree to the definition, which, of 
course, if accepted, would have destroyed its claim to 
a boundary by the Chiriqui, whose point of emptying into 
the Atlantic was many miles below Punta Carreta. And 
this serves to demonstrate that the real difference between 
the parties, at least as to the boundary on the Atlantic side, 
did not arise from the fact that the parties were quarrel- 
ing over the direction of either of the different bounding 
rivers upon which they respectively relied, but were disput- 
ing and unalterably at odds as to which river was the 
boundary. 

Again in 1865 a further attempt by treaty was made to 
fix a boundary by a river described as the Carnaveral, 
which if made the boundary would in substance, that is, 
for all practical purposes, have created a boundary the 
equivalent of that claimed by Costa Rica in the Chiriqui 
River. The treaty failed of ratification, and without going 
into cletail it is true here again to say that the failure of 
the ratification in part at least arose from the impossibility 
of securing a meeting of minds of the two countries as to 
the abandonment of the claims of the river boundary 
pressed by either side, and was not concerned with the 
contention upon one side or the other concerning the course 
or direction of the bounding river which either claimed, if 
that river had been accepted as the boundary. 

In 1873 another treaty was drawn which defined the 
boundary by a river called the Bananos flowing from its 
source in the Cordilleras emptying in the Atlantic at Al- 
mirante Bay. As the concession of the boundary by this 
river would have clearly repudiated Panama's claim pre- 
viously asserted of a river emptying into the Atlantic, the 
first below Punta Carreta or Punta Mona, its ratification 
would have destroyed all right of Panama to such claim. 
But the treaty was not ratified, thus again affording an 
illustration of what was the real dispute, that is, which of 



the rivers was the boundary, and the difficulty of securing 
the ratification of any treaty on that subject. 

In the long period of time embracing the acts to which 
I have just referred there were various official statements 
of responsible officers of the Colombia (Panama) Gov- 
ernment, all resting its boundary claim upon a river bound- 
ary, and not one word of intimation is found in the slight- 
est degree tending to show that any other or different 
boundary right was claimed than one by a river, whatever 
may have been the controversies or doubts suggested con- 
cerning the particular name of the river or the point where 
it emptied into the Atlantic, and, indeed, this also is true 
concerning the general course and trend of the bounding 
river relied upon. I make these statements, not overlook- 
ing the fact that there are instances where Punta Mona, a 
place on the Atlantic shore not on the mouth of any river, 
is mentioned as the boundary and indeed one instance 
where it was declared that Humboldt was authority for 
that proposition, although the very official making the 
statement pointed out that the boundary was the Culebras 
Eiver which, as then understood, was a stream entering 
the ocean below Punta Mona. Likewise, Madrid, the distin- 
guished Colombian publicist already referred to, making a 
report to the Colombian Senate said in referring to the 
boundary on the Pacific as well as on the Atlantic and of 
the crossing of the boundary line over the Cordillera range, 
that the whole boundary line, both on the Pacific and the 
Atlantic sides, including the crossing of the mountains, con- 
sisted of a line to be drawn from the middle of the Gulf of 
Dulce on the Pacific side, thence crossing the Cordilleras 
and traversing the Atlantic side to "the mouth of the 
Eiver Doraces or Culebras, a short distance from Punta 
Careta, which is also, approximately, the boundary indi- 
cated by Baron de Humboldt and other celebrated travel- 
lers," thus in effect confirming a river boundary as as- 
serted from the beginning and at all times without hesi- 
tation or deviation by Panama, and in addition making 
it quite clear that the course and direction of the bounding 



10 

river as understood between the parties was that which has 
been previously stated. 

(b) The light thrown upon the subject, if any, by a con- 
sideration of maps and charts applicable to the claim. 

It is undoubted that in the earlier maps there was great 
uncertainty as to the particular name of the river relied 
upon, some showing a river named Dorces, Doraces or 
Dorados, some a river called Culebras, and some showing 
two distinct rivers one named Dorces, Doraces or Dorados 
and the other Culebras. However, it is true to say that in 
a general sense all the rivers so named are shown on all 
these maps to have a general northeasterly direction from 
the main Cordilleras where, or in the vicinage of which, 
they purported to take their source and flowed to the At- 
lantic Ocean, whatever was the confusion in the respective 
maps as to the precise point of location of the rivers or the 
place where they emptied into the Atlantic. For instance, 
what is known as the Spherical Chart of 1805-9 shows the 
Dorados river flowing from the region of the mountains in 
a northeastern direction without tributaries to its mouth 
in the Atlantic, the first below Punta Mona, while the 
map of Ponce de Leon and Paz of 1864 showed the Cule- 
bras or Dorados having the same general course empty- 
ing into the Atlantic above Punta Mona. But none of 
these differences serve to confuse the situation when 
looked at comprehensively, that is, they do not serve 
to create any material doubt concerning the boundary! 
river, the first below Punta Mona, relied upon by Pan- 
ama and the general northeasternly course which such river 
was considered to have from the point of view of its source 
in the mountains and journeying from thence to the place 
where it emptied into the ocean. 

And indeed it is here again worthy of remark that this 
coincidence of course corresponds in its general trend with 
the assertion by Colombia (Panama) of its boundary line 
in the very first instance where it found exact expression in 



11 

the definition of the boundary in the act creating the terri- 
tory of Bocas del Toro, to which I have referred. 

(c) The demonstration as to the exact nature of the claim 
afforded by the occupation or settlement of the territory 
covered by the boundary during the period of dispute. 

It is, moreover, to be observed that it is obvious if the 
parties contemplated the boundary to be a river flowing 
from the mountains to the ocean in a northeasterly course, 
the eastern bank of such a river would belong to Colombia 
(Panama) and the western bank to Costa Eica, an under- 
standing which it is undoubted was the one entertained by 
the two Governments. I say this because the proof here is 
adequate and comprehensive that the western bank of a 
river so flowing was occupied and settled under the juris- 
diction of Costa Eica, and that as far as settlements were 
made by Colombia (Panama) the eastern bank was taken 
as the line of its jurisdiction of that country. This is aptly 
illustrated by the following facts. A Colombian settlement 
was located at the mouth of the boundary river, the first 
below Punta Mona, which came to be known as the Sixaola. 
This bank, if a river had been contemplated as flowing east 
and west in its course from the Cordilleras to the sea, 
would have been the south bank of the river, as indeed at 
the point of settlement it was accurately speaking such 
bank owing to the direction of the flow of the Sixaola in the 
immediate region of its mouth. But disregarding this 
merely local condition and evidently looking at the situa- 
tion with reference to the trend of the boundary line which 
it had entertained from the beginning and the general 
course of the river which had been from the commence- 
ment and without change considered to be the boundary, 
complaint was made by Colombia (Panama) to Costa Eica 
of intrusion upon "the Colombian village 'Sixaula,' situ- 
ated upon the eastern side of that river." And similar 
language was repeatedly used in the course of the negotia- 
tions betweeen the parties. Indeed, it is correct to say that 
whatever may have been the more accurate knowledge ac- 



12 

quired of the names of rivers and of their true location and 
courses and distances, there is nothing whatever in the 
record to indicate any action taken or any expression by 
word which directly or indirectly would justify the belief 
that up to the period when the previous award was ren- 
dered, the consideration of which we shall hereafter 
approach, the boundary line between the two countries 
as insisted upon by Panama, was made in any other 
way than by a river having the general trend and course of 
the river or rivers to which we have referred and which 
in practice were treated as the dividing line — a practice 
which, as I have said, was shown by official action in many 
forms, by the exercise of dominion by the respective coun- 
tries and was demonstrated by the settlements which mani- 
fested the practical conception which prevailed concerning 
the real situation as to boundary. 

(d) The controlling effect of the action of Panama con- 
cerning the submission of the matter to a former arbitra- 
tion, and the dominating influence of its conduct in connec- 
tion with the hearing and submission thus previously made. 

The failure to provide for the exact delimitation of the 
boundary line as contemplated by the Convention of 1825 
may well be presumed to have produced its natural results. 
Certain is it that as there had been a failure to do so 
not only on the Atlantic but on the Pacific side of the 
mountains, in 1880, growing out of disputes as to rights 
of possession and authority in the territory on the Pacific 
side, a rupture between the two countries was threatened 
and war between them was imminent. In view of these ex- 
igencies and in contemplation of a proposed negotiation 
with Costa Eica for an adjustment which might obviate an 
armed conflict, the Senate of Colombia (Panama) on July 
14, 1880, formulated a statement of the claim of Colombia 
embracing the following conclusions : 

"(1) Colombia has, under titles emanating from 
the Spanish Government and the uti possidetis of 
1810, a perfect right of dominion to, and is in pos- 



13 

session of the territory which extends towards the 
north between the Atlantic and Pacific Oceans to the 
following line: 

"From the mouth of the Eiver Culebras, in the 
Atlantic, going upstream to its source, from thence 
a line along the crest of the ridge of Las Cruces to 
the origin of River Golfito ; thence the natural course 
of the latter river to its outlet into the Gulf of Dulce 
in the Pacific. 

"(2) Colombia has titles ^which accredit its right, 
emanating from the King of Spain, to the Atlantic 
littoral embraced from the mouth of the Eiver Cule- 
bras as far as Cape Gracias a Dios. 

"(3) Colombia has been in uninterrupted posses- 
sion of the territory included within the limits indi- 
cated in Conclusion I." 

And in another Conclusion which I do not reproduce, 
it was virtually declared that as a condition preced- 
ent to negotiations there must be an "evacuation [by 
Costa Rica] of any portion of territory in which that nation 
may have established its authorities beyond the limits 
marked out in Conclusion I. ' ' Although these Conclusions 
were communicated for his guidance to the Negotiator rep- 
resenting Colombia, who was endeavoring to reach an ad- 
justment with Costa Rica, it is worthy of remark that the 
instructions transmitting to the Negotiator the Conclusions 
of the Senate while insisting that as a sine qua non to the 
negotiations certain territory situated on the Pacific coast 
which was the more immediate cause of the dispute should 
be evacuated, made no request of such a character as to one 
foot of soil on the Atlantic side based on the want of right 
to possess along the bounding river having the course and 
direction which I have stated. This conduct certainly 
shows that even in the vivid light which must have been 
thrown on the controversy between the two countries re- 
sulting from the almost flagrancy of war, the parties con- 
cerning the boundary on the Atlantic coast entertained and 
suggested no different view of that boundary than a river, 
by whatever name it might have been called, following the 
general trend and course of the bounding river which had 



14 

been asserted by Panama from the beginning, and that 
settlements by Costa Bica on the Atlantic coast which did 
not transcend or interfere with snch a boundary were not 
really the subject of serious dispute between the two 
countries. It is also worthy to be observed that although 
the larger territorial claim of the Atlantic coast to Cape 
Gracias a Dios was embodied in the Conclusions of the 
Senate under Number 2, no express instructions what- 
ever concerning that claim were given to the Negotiator, 
and it is in addition of importance that the President 
of Colombia issued a prolamation concerning the claims 
of that Government and although in such proclamation 
he embodied in so many words the propositions con- 
tained in the Senate Conclusions with reference to the 
assertion of the river boundary, no mention whatever was 
made as to the claim of sovereignty over the coast up to 
Cape Gracias a Dios as mentioned in the Senate Conclusions 
since the Senate's statement as to that asserted right was 
wholly omitted from the proclamation — a fact which gives 
support to the view that such controversy was not em- 
braced by the Treaty of 1880. 

The rupture between the two countries was avoided and 
a treaty was negotiated and ratified between them for the 
purpose of submitting to the arbitrament of the King of 
Spain the disputes stated in the treaty. The preamble of 
this treaty recited that its purpose was "to close the only 
source of differences that may arise between them, which is 
no other than the question of boundaries foreseen in articles 
VII and VIII of the Convention of March 15, 1825, between 
Central America and Colombia, and which has subsequently 
been the subject of diverse treaties between Costa Rica and 
Colombia" — a declaration of purpose clearly embracing 
the river boundary dispute which was the subject provided 
for in the articles of the Convention of 1825 referred to and 
which articles were therefore virtually incorporated into 
the treaty and became by reference a part thereof. The 
first article, which gave effect to the purpose thus expressed 
in the preamble, by its terms when reasonably construed 



15 

related to the fixing of a boundary along the disputed line 
coming within the scope of articles VII and VIII of the 
Convention of 1825 to the end that the possession of both 
parties within their proper territory might be secured — a 
boundary which, as we have seen, by the acts and declara- 
tions of Colombia, by the authoritative writings of the 
publicists of that country, and by the very conclusions of 
the Senate leading up to the treaty had come to mean a 
river flowing from its source in the Cordilleras in a 
northeasterly direction to a point where it emptied into the 
Atlantic Ocean as the first river having its mouth below 
Punta Mona. And the fact that this was the subject con- 
templated by the treaty is further shown when it is con- 
sidered that the Convention of 1825 had in it an article ex- 
pressly referring to a modus vivendi regarding the larger 
claim concerning the Atlantic coast to Cape Gracias a Dios, 
and that no reference or incorporation of the provisions on 
that subject was made in the treaty — a view additionally 
sustained by the instructions to the Negotiator who com- 
menced the negotiation of the treaty and by the President 
in his proclamation, in both of which the controversy as to 
the sovereignty of the coast line was treated as negligible 
for the purpose of the negotiations which the treaty con- 
summated. 

The King of Spain accepted, but before his duty was 
discharged, although the Government of Spain had taken 
initial steps towards its performance, the King died. 
Thereafter in 1886 the two Governments negotiated an ad- 
ditional treaty of arbitration. The preamble of this Con- 
vention after reciting the previous treaty, the acceptance of 
the King of Spain, the beginning by the Spanish Govern- 
ment of the execution of the duties incident to the arbitra- 
tion and the death of the King, declared that the parties to 
remove all doubt regarding the competency ' ' of his succes- 
sor [the King's] to continue to exercise jurisdiction over 
said arbitral suit until final judgment, have agreed to 
execute the following convention ad referendum additional 
to that signed * * * on December 25, 1880." The 



16 

first Article of this treaty recognized in express terms the 
right of the successor of the King or the government of 
Spain ' ' to continue exercising jurisdiction over the arbitra- 
tion proposed by the two Bepublics, and to render an irre- 
vocable and final award in the controversy pending con- 
cerning the territorial boundaries between the High Con- 
tracting Parties. ' ' While no reference in terms was made 
to an additional power to consider and decide as an arbitra- 
tor the controversy concerning the larger territorial claim, 
it cannot be subject to serious dispute that under the 
terms of the treaty an additional power to that conferred 
by the previous treaty was given to the arbitrator to ad- 
judge as to the larger claim of Panama to territorial 
sovereignty extending along the coast line to Cape Gracias 
a Dios. I say this because such is the natural result of 
an enumeration of the limits of the territory in dispute 
embraced in Article II and the statement in Article III 
concerning the authority of the arbitrator to decide the 
controversies. 

I do not reproduce the text of the two articles since it 
is hereafter quoted (p. 25) in the analysis of the legal ques- 
tions which are involved in the merits of the controversy. 
But in my opinion the fact that the additional power was 
given concerning the territorial claim clearly did not change 
or expand the power conferred by the previous treaty con- 
cerning the boundary claim, since such conclusion is ren- 
dered absolutely necessary by the express statements which 
I have referred to in the treaty that the power formerly 
given and which had been partially executed was to con- 
tinue until final judgment, and finally by the provision 
saving the prior treaty from abrogation as a result of the 
adoption of the latter. 

It having resulted from reasons purely of convenience not 
necessary to be stated, that the King of Spain did not com- 
plete the discharge of the duties of arbitrator begun 
under the first treaty nor enter upon those resulting from 
the second treaty, the parties in 1896 entered into a Conven- 
tion agreeing to submit the subjects to the arbitration of the 



17 

President of the French Republic. The Convention ex- 
pressly declared that it made no change in the fundamental 
matters referred to, and that it was but intended to sub- 
mit the controversy under the terms and limitations thereof 
to the arbitrament of a new tribunal. Prior to the 
assumption by the President of the French Republic of the 
duties created by this treaty, the authorized representa- 
tive of Costa Rica addressed to him a letter enclosing the 
text of the arbitration treaty and asking him to under- 
take the duties which it imposed. The letter in addition 
said: "I also enclose a geographical map of the territory 
in litigation upon which are indicated the boundaries 
claimed by each of the contracting parties." The map 
which was thus sent clearly delineated the bounding river, 
the Chiriqui, claimed by Costa Rica, and the river claimed 
to be the boundary by Colombia (Panama), that river being 
marked on the map as entering into the Atlantic the first 
below Punta Mona and having in its flow from the moun- 
tains to the ocean a general northeasterly direction con- 
forming to the course and flow of the bounding river 
which, as I have seen, had prevailed without question 
or hesitation from the beginning. The river which was 
thus delineated on the map was designated as the "Yur- 
quin" (Yorquin) from its source in or near the Cordil- 
leras to a point where it emptied into a river named the 
"Sixola" (Sixaola), the two in the course and direction 
indicated thus being marked on the map as the bound- 
ing river on which Colombia relied. There is no proof 
in this record that such letter written by the representa- 
tive of Costa Rica, was ever communicated to the repre- 
sentatives of Panama, but there is nothing in the record 
indicating that anything occurred which called for its 
communication, as there is nothing to show that there was 
any intimation of controversy between the parties as to the 
trend and course of the bounding river claimed by Colom- 
bia to constitute the boundary if the general controversy 
between Colombia and Costa Rica as to which of the two 
rivers was the boundary should be determined in favor of 



18 

Colombia. The duty under the treaties was accepted by 
the President of the French Republic and the case was 
made up and submitted for award. 

On the part of Panama an elaborate argument was sub- 
mitted to sustain the claim of that country to sovereignty 
over the Atlantic coast to Cape Gracias a Dios, under the 
Royal Order of 1803, and in addition an argument was 
made to sustain a broad claim of territorial authority under 
a Royal Cedula of March 2, 1537, which it would seem was 
presented for the first time in the argument in question. 
Aside from the elaborate argument just stated there was 
no detailed discussion or argument on the part of Panama 
concerning the dispute between itself and Costa Rica as to 
which of the two rivers was the boundary and nothing 
whatever was said concerning the course and trend and 
location of the river claimed by Panama as the boundary, 
if the river asserted by it should be found to be the true 
boundary, which in the slightest degree conflicted with the 
statements on that subject contained in the letter written 
by the minister of Costa Rica or which, moreover, in any 
way whatever challenged the source, the course and the 
trend of the river relied upon by Colombia as resulting 
from the history of the boundary controversy from the 
beginning which has been previously given. I say this 
because the only statement concerning these subjects con- 
tained in the argument made by Colombia after a discus- 
sion concerning the validity of its claim to authority over 
the coast line was a general reference to Colombia's title to 
what it called the Duchy of Veragua, which Colombia con- 
fessedly held, and the claim in the following words asserted 
to exist as the result of the ownership of that title : ' ' This 
title alone would suffice to show the actual right of posses- 
sion of Colombia over Chiriqui Lagoon, the Bay of the Ad- 
miral [Almirante Bay] and the contiguous country in 
the direction of the Sixaola River (dans la direction du 
Rio Sigsaula)." 

On the part of Costa Rica the argument was addressed 
to an attempt to refute the larger claim as to sovereignty 



19 



over the coast made by Panama and in addition as to the 
boundary dispute to establish that the River Chiriqui, was 
the true boundary and by a negative pregnant to thereby 
demonstrate that the river claimed by Colombia was not. 
But there was not one word in the argument tending to 
show that it was considered that if Colombia's claim to 
boundary was rightful, it embraced any other territory 
or any other river than that which had been described in 
the letter to the Arbitrator, and which description con- 
formed to all the facts which, as I have stated, are demon- 
strated by the history of the subject from the beginning. 
The whole record which was before the former Arbitra- 
tor is not shown to be a part of this record, but neither 
party disputes, if they do not in terms concede, that the 
substantial facts which I have previously stated were em- 
braced in the record for the purposes of the prior arbitra- 
tion. Prior to making the award and as an aid in doing so, 
the Arbitrator appointed a Commission of distinguished 
officials of the French diplomatic corps, and in addition the 
Keeper of the Maps in the National Library, to consider 
the subject presented by the arbitration. The written 
report of that Commission, if any was made, is not in this 

record. 

The award of the Arbitrator was made on September 11, 
1900. Leaving aside certain provision contained therein 
as to islands both along the Atlantic and Pacific so much 
of the award as is necessary here to be considered is as 
follows, the translation from the French being taken from 
the argument of the Eepublic of Panama in this case, there 
being no question on the other side as to its substantial 
accuracy. 

"The Frontier between the Republics of Colombia 
and Costa Rica shall be formed by the counterfort of 
the Cordillera which starts from Cape Mona, on 
the Atlantic Ocean, and closes on the North the 
valley of the Tariare or Rio Sixola; then by the 
chain of division of waters between the Atlantic 
and Pacific, to nine degrees, about, of latitude; it 



20 

will follow then the line of division of waters be- 
tween the Cheriqui Viejo and the affluents of Gulf 
Dulce, to end at Point Burica on the Pacific Ocean. 

Upon the announcement of this award the Minister of 
Costa Rica who had also been its agent for the purposes 
of the proceedings under the arbitration addressed a letter 
to Monsieur Delcasse, the Minister of Foreign Affairs of 
France, in the name of Costa Rica in form at least seeking 
to interpret the award and requesting that a particular 
line be indicated by the arbitrator as a boundary. The line 
thus asked as an interpretation of what had been awarded 
was substantially like that which the Minister of Costa Rica 
had marked on the map which he sent to the President of 
the French Republic before the arbitration was undertaken 
as showing what the claim of Colombia was as to the river 
which it asserted to be the boundary and therefore as 
demonstrating what that country would be entitled to if its 
claim was allowed. 

To this letter the Minister of Foreign Affairs replied as 
follows : 

"Answering the request which you have been 
pleased to express in your letters of September 29th 
and October 23rd ultimo, I have the honor to inform 
you that, on account of the lack of exact geographic 
data, the Arbitrator was not able to fix the boundary 
except by means of general indications; I think, 
therefore, that there would be difficulty in fixing them 
on a map. But there is no doubt, as you observe, 
that, in conformity with the terms of articles 2 and 
3 of the Convention of Paris of January 20, 1886, 
this boundary line must be drawn within the confines 
of the territory in dispute, as they are determined by 
the text of said articles. 

"It is in accordance with these principles that it 
is for the Republics of Colombia and Costa Rica to 
proceed to the physical delimitation of their front- 
iers, and the Arbitrator trusts, on this point, to the 
spirit of conciliation and good understanding with 
which the two Governments in litigation have up to 
the present time been inspired. * * * " 



21 

Costa Eica declined to accept the award unless it was 
interpreted according to its view as stated in the letter 
written by its minister to Monsieur Delcasse, and Colom- 
bia insisted that the award required no interpretation and 
should be executed according to its terms. The award re- 
mained without practical effect although various negotia- 
tions were had on the subject and although a proposed 
treaty for adjusting the differences was drawn but failed 
of ratification. In this situation a treaty providing for 
the duty of arbitration to be performed by the Chief Jus- 
tice of the United States, now being executed, was entered 
into. By that treaty the previous award as to the Pacific 
coast, as to the line crossing the Cordilleras and the 
dividing line on that range of mountains "to a point be- 
yond Cerro Pando * * * near the ninth degree of 
North Latitude" was expressly declared to be binding, 
and, therefore, all controversy concerning those subjects 
was put at rest. It follows, therefore, that the treaty 
accepted in its entirety the award as to the Pacific coast 
and provided only by the methods and to the extent con- 
templated by its terms, which I shall hereafter have occa- 
sion to specifically state and consider, for an examination 
and decision concerning the controversy in relation to the 
award concerning the dispute as to the boundary between 
the two countries on the Atlantic coast from the mountains 
to the ocean. 

The record contains nearly fifty volumes, and the argu- 
ments submitted as to the subject-matter in controversy are 
voluminous, covering on one side or the other the widest 
possible field and every aspect of everything that has taken 
place in the long period of time to which I have referred. 
Without reference to its materiality to the issues here 
to be decided there is certainly this distinction between 
the record now under consideration and that which was 
before the previous Arbitrator which ought not to be 
passed without mention. By the terms of the present 
treaty, provision was made for the appointment of a com- 



22 

mission ''for making a survey of the territory"; and 
this request having been made, in October, 1911, such a 
board was organized, composed of four members, one ap- 
pointed by the President of Costa Rica, one by the Presi- 
dent of Panama, and the other two by the Arbitrator. The 
appointees were all civil engineers of the highest attain- 
ment and distinction in their profession. They were as 
follows : Professor John F. Hayford, of Northwestern Uni- 
versity, Evanston, Illinois, Chairman; Professor Ora M. 
Leland, of Cornell University, Ithaca, New York, Secre- 
tary ; Mr. P. H. Ashmead, of New York City ; and Mr. Frank 
W. Hodgdon, of Boston, Massachusetts. After the organi- 
zation of the board and after the adoption of a plan to gov- 
ern the performance of its duty, which plan was approved 
by both countries, a survey in the field was undertaken and 
accomplished after prolonged and arduous labor, and its 
results were submitted in a report and in many maps 
and charts displaying the situation in the most careful, 
comprehensive and accurate manner. It is true to say, 
overlooking what may be qualified as minor differences, 
the board was in substance united. And great as is the 
satisfaction afforded by the action of the Commission of 
Survey, there is an additional and important cause of grati- 
fication arising from the fact that its work as to fiscal ar- 
rangements and in every other respect was aided and facili- 
tated by the two countries whose controversy is here for de- 
cision. I do not go into detail concerning the report or the 
map or maps which accompanied it, since in the view now 
taken of the case it does not depend upon their analysis or 
statement. But although it is not essential to the con- 
clusion which I have reached, it is pertinent to the conten- 
tions which I shall be obliged to notice before announcing 
that conclusion to state the facts shown by the report and 
maps of the Commission concerning a continuous counter- 
fort (range or spur) stretching from the main Cordilleras 
to Punta Mona which was made the boundary line in the 
previous arbitration. These facts show that there is un- 
doubtedly a high spur projecting itself out in the direc- 



23 

tion of Punta Mona from the main range for a distance 
of about nine miles, but there is then a sudden drop of 
about 3600 feet in less than four miles, where an elevated 
but broken country begins, full of ridges, transverse to 
the direction of the spur. From this region continuing 
towards the Atlantic there is a gradual lowering except 
for occasional peaks, the country falling to an elevation 
of about six hundred feet when a distance of about six- 
teen miles from Punta Mona is reached, and sinking yet 
farther to about three hundred feet most of the way and 
finally subsiding into a swamp which is a mile and one- 
half wide, until a small eminence which marks Punta 
Mona is attained. Whether, as is urged, the designation 
of "counterfort" was mistakenly applied to such a situa- 
tion, however, I am not called upon to consider, since my 
conclusion, as I have said, is wholly independent of that 
fact. 

There is no real controversy between the parties as to 
the facts previously stated. I say real controversy be- 
cause if it be that there is any dispute on the subject the 
preponderance of evidence makes such clear proof con- 
cerning such facts that they may be accurately said to be 
not disputable. And in my opinion it is also true to say that 
likewise the inferences which I have drawn from the facts 
stated in the course of making the statement are so clearly 
compelled by the facts stated as to be equally beyond dis- 
pute. I now come to consider the propositions relied 
upon by the parties in the light of the facts and the infer- 
ences which I have heretofore or shall hereafter draw from 
them under a heading — The Merits of the Controversy. 

The Merits of the Controversy. 

Costa Rica insists, first that under the facts the selec- 
tion by the Arbitrator of Punta Mona as an initial bound- 
ary point and the making of the boundary line by a range 
or spur of mountains extending from there to the Cordiller- 
as was void because beyond the scope of the authority 



24 

which the arbitration embraced. Second, it insists that in 
any event as something cannot be made out of that which 
does not exist, it clearly follows that the selection of the line 
was in other respects void since under the proof it is demon- 
strated that the mountain range made the basis of the award 
has no existence. 

On the part of Panama the contention is, first, that assum- 
ing the facts which I have given in stating the history of 
the case to be true, nevertheless the line of alleged moun- 
tain boundary was within the power of the Arbitrator to 
fix because the authority to do so was conferred upon him 
by the treaty upon which the arbitration was made. And 
second, that this view remains unaffected even if it be 
assumed that the range of mountains has no existence since 
the line of boundary which that range was intended to mark 
remains and is plainly discernible by the conformation of 
the country and the watershed which it contains. Third. 
It is additionally insisted by Panama that the validity 
of the line of mountain boundary must be tested not by 
the assumed dominancy of any general principles of law 
governing arbitration, but by the former arbitration treaty 
alone, because the treaty under which the power to arbitrate 
is now being exercised confines the authority of the present 
Arbitrator to determining whether the previous award was 
within the terms of the previous treaty and excludes the 
power to hold the previous award invalid if it was within 
the treaty upon the theory that it conflicted with general 
and controlling principles of law. 

Considering these propositions as a whole, inasmuch 
as there can be no question of the power of the two Gov- 
ernments to have entered into the previons treaties of arbi- 
tration and to insert in them such provisions as they 
deemed best, it clearly results that the first proposition of 
Panama, if its premise be true, is well founded and is con- 
trolling since it cannot be said that action taken under the 
treaties was void for want of power if it was within the 
power which the treaties conferred. It also is patent, 
this being true, that it cannot be held under this treaty 



25 

that an act done under the prior treaty was void al- 
though sanctioned by such treaty because of some concep- 
tion of general principles of law. This must be the case 
because to so do would amount to deciding that this treaty 
gave the power to set aside acts which were authorized by 
the previous treaty. It thus necessarilly comes to pass 
that the fundamental question to be decided requires it 
to be determined whether the boundary line fixed by the 
previous arbitration was within the previous treaty or 
treaties. And if it was not, it must follow that its cor- 
rection is within the scope of the authority conferred 
by this treaty ; and if it was, no power here obtains to re- 
vise it. It is therefore true that the whole case comes 
down to the question stated : which is, the scope and mean- 
ing of the prior arbitration treaty or treaties, and the 
solution of that inquiry will decide both of the proposi- 
tions relied upon by Costa Rica, as well as all those in- 
sisted upon by Panama. 

The study of that question from the point of view of the 
argument presented by Panama requires the immediate 
consideration of the text of the previous treaty, that of 
1886, the pertinent articles of which are as follows : 

"Article II. The territorial limit which the Re- 
public of Costa Rica claims, on the Atlantic side, 
reaches as far as the Island Escudo de Veraguas, and 
the River Chiriqui (Calobebora) inclusive; and on 
the Pacific side, as far as the River Chiriqui Vie jo, 
inclusive, to the East of Point Burica. 

1 ' The territorial limit which the United States of 
Colombia claims reaches, on the Atlantic side, as far 
as Cape Gracias a Dios, inclusive ; and on the Pacific 
side, as far as the mouth of the River Golfito and in 
Gulf Dulce. 

"Article III. The arbitral award shall confine 
itself to the disputed territory that lies within the ex- 
treme limits already described, and cannot affect in 
any manner any rights that a third party, who has 
not taken part in the arbitration, may set up to the 



26 

ownership of the territory comprised within the 
limits indicated." 

The construction relied upon to establish that the moun- 
tain boundary was within these treaty provisions and there- 
fore valid and not subject to be re-examined under this 
treaty is this: The second article, it is said, specifically 
states the exterior points of the vast territory which 
was in dispute and therefore brought within the juris- 
diction of the Arbitrator everything within those ex- 
terior boundaries and gave him authority at his discre- 
tion wholly without reference to any particular contro- 
versy pending or dispute existing as to claims within 
the boundaries, to fix such a line of boundary within 
the exterior limits as was deemed best. And support for 
this proposition is derived from the clause of the third ar- 
ticle saying, ' ' The Arbitral award shall confine itself to the 
disputed territory that lies within the extreme limits al- 
ready described, ? ' the construction given to these words be- 
ing that they empower the fixing of a line not only concern- 
ing a dispute as to the exterior limits, but a line within 
the exterior limits wholly without reference to the dis- 
putes prevailing between the parties as to land within 
the exterior limits. The demonstration of the extreme 
result which would come from maintaining the construc- 
tion thus asserted is too plain to require more than to 
direct attention to the consequences which would result 
from sustaining it — consequences which could not be better 
exemplified than they are by the facts of this case where in 
a dispute only as to which of two rivers was the bounding 
one with no difference whatever as to what either of the 
parties would be entitled to if either river relied upon was 
made the boundary, no river boundary was made, but a 
mountain range was fixed carrying with it a large amount 
of territory to which the successful party would not pos- 
sibly have had any title if every claim which was made in 
the dispute as to that boundary had been held to be correct. 
Besides, on the face of the text the curious premise upon 



27 

which the argument proceeds is patent since it in sub- 
stance is that from a grant of power to determine as to 
the "disputed territory that lies within the extreme limits" 
there arose the right to determine as to territory within 
such limits as to which there was no dispute whatever. 
And that this anomalous result of the proposition is not 
overdrawn is made manifest by the statement on the sub- 
ject in the argument on behalf of Panama, where it is said : 

"Article III only provides that the award shall be 
confined to the disputed territory within the limits 
fixed by Article II, and cannot affect the rights of 
third parties. * * * 

"It will be noted that the only limitation which 
these Articles imposed upon the Arbitrator was with 
regard to the terminal points of the boundary which 
he should fix. He could not, upon the Atlantic, fix a 
line which should begin south or east of Escudo de 
Veraguas or the mouth of the river Chiriqui, nor 
north of the northern frontier of Costa Eica; nor 
could he fix any line which should meet the Pacific at 
a point south of the Chiriqui Vie jo or north of the 
Golfito. 

"But except in this respect his jurisdiction was 
unlimited. No claim was made by either party as to 
interior lines and nothing in the treaty prescribes 
any rule upon the subject. So long as the terminal 
points upon the two coasts were within those stated, 
he was at complete liberty, in the interior, to connect 
them by a line running in whatever course he should 
think proper. ' ' 

I do not stop to point out how plain would be the duty to 
resort to every reasonable intendment to save the articles 
of the treaty from the construction attributed to them if 
the premise upon which the proposition rests were true 
that their text alone afforded the measure of deciding the 
question of power conferred as to the boundary issue. 
But the question of power is not to be solved alone by the 
article of the treaty thus relied upon by Panama, since on 
the face of the record it is apparent that it must be solved by 



28 

the text of a different treaty which when it is considered 
renders it impossible to ascribe the meaning relied upon to 
the provisions referred to. A brief recurrence to the his- 
tory of the case previously made will make this clear since 
that history shows beyond the possibility of question that 
the boundary dispute was first provided for by the Treaty of 
1880 and contained a limitation or direction based upon 
the Treaty of 1825 between Colombia (Panama) and Central 
America (Costa Rica) which causes it to be impossible to 
suppose that the extensive power now claimed was conferred 
concerning- the boundary dispute. This becomes clearer, 
if it were possible to add to its clearness, when the state- 
ment is recalled that when the Treaty of 1886 was drawn 
in express terms it reserved the powers granted by the 
previous Treaty of 1880 and declared that the powers 
created under the new treaty were additional to those con- 
ferred by the former, and to make assurance doubly sure, 
there was added to the Treaty of 1886 a clause saving from 
repeal the Treaty of 1880. 

Even upon the hypothesis that the Treaty of 1880 pro- 
vided both for the boundary dispute and for the territorial 
claim up to Cape Gracias a Dios which embraced on the 
Atlantic side the exterior boundaries subsquently stated in 
the Treaty of 1886, such assumption would be without con- 
sequence because it could not possibly be assumed that the 
inclusion of the larger and wholly distinct territorial claim 
was intended to destroy the express limitations concern- 
ing the boundary claim which the treaty embodied by mak- 
ing reference as it did on that subject to the articles of the 
Treaty of 1825. And, indeed, this would be the result if it 
were additionally supposed for the sake of argument that 
the Treaty of 1880 and the Treaty of 1886 became incorpor- 
ated into one and the same instrument by the effect of the 
adoption of the Treaty of 1886, since it would be obvious 
under the terms of the Treaty of 1886 as thus construed 
that it was the clear intention of that treaty to preserve un- 
impaired and unchanged the powers, duties and limita- 
tions previously created and therefore to impose the duty 



29 

of enforcing the two harmoniously so that the duties under 
both might be performed. 

While these considerations dispose of all the principal 
arguments advanced to maintain the contention that the 
text of the Treaty of 1886 sustains the extreme power 
asserted and I might well pass from the subject, neverthe- 
less before doing so in order not to seem to overlook sug- 
gestions made or necessarily arising, I proceed to notice 
some considerations concerning some words in the text 
which have been deemed to be of importance but which I 
have not previously noticed in order to avoid breaking the 
continuity of the argument. The clause in the third 
article of the Treaty of 1886 saving the rights of third 
parties, it is suggested by reasoning whose import is not 
clearly discernible, lends some strength to the conten- 
tion that the treaty conferred the extreme authority 
claimed. But it is obvious that this clause instead of 
removing a limit, imposed one, since its plain terms evi- 
dence that it was intended in any and all events but to 
restrict the operation of the award so as not to affect 
third parties — a restriction presumably inserted because 
at the time the treaty was drawn the United States was 
insisting that rights which it asserted might otherwise 
without such restriction be affected, and, moreover, because 
the line embraced in the shore claim of Panama, as we have 
seen, extended beyond the territory of Costa Eica up to 
Cape Gracias a Dios. And the contention in another as- 
pect, manifests a confusion like that which I have pre- 
viously pointed out since it would be singular, indeed, to say 
that a limitation which was inserted for the purpose of pro- 
tecting those who were not heard had for its object the ex- 
tension of the scope of the arbitration so as to cause it to 
embrace as to the parties to the convention the absolute 
right on the part of the arbitrator to condemn them without 
a hearing, which, of course, would be the result if the 
provision had the extreme construction which it is now in- 
sisted belongs to it. 



30 

From these considerations the following general con- 
clusions are established: (1) That the controversy as to 
boundary between the parties which had existed for so 
many years was limited to a boundary line asserted by 
one party and to that asserted by the other, the territory 
in dispute between them, therefore, being that embraced 
between the lines of their respectively asserted boundaries. 
(2) That the previous treaties of 1880 and 1886 by which 
the boundary dispute thus stated was submitted to arbitra- 
tion, instead of going beyond the general principles of law 
which otherwise would have applied and conferring an 
extreme power to make an award wholly without reference 
to the dispute or the disputed territory, by their very 
terms confined the award to the matter in dispute and the 
disputed territory. (3) That as the line of boundary 
fixed by the previous award from Punta Mona to the Cor- 
dilleras was not within the matter in dispute or within 
the disputed territory, it results that such award was 
beyond the submission and that the Arbitrator was without 
power to make it, and it must therefore be set aside and 
treated as non-existing. The only question then is, What 
in other respects is the duty arising under the present 
arbitration from that situation? 

As by the terms of the present treaty the previous award 
was not set aside as a whole, and the power was only given 
to correct it in so far as it might be found to be without the 
authority conferred, the consequence is that all the results 
necessarily implied by the selection of the mountain line 
from Punta Mona along the stated counterfort, which can 
be upheld consistently with the previous treaty, must be sus- 
tained although the mountain line itself be void for want of 
authority to make it. While not in express terms urged, 
it may be implied from the argument that the contention is 
that, the mountain line being out of the way for illegality, 
there would remain as a part of the previous award a river 
line composed of the Sixaola-Tarire Eivers since the award 
declared that the mountain line would bound on the north 
the valley of such rivers and hence they may constitute 
a boundary line within the award previously made. To 



31 

dispose of this suggestion it is only necessary to point out 
the fallacy of the premise upon which it must rest since that 
premise virtually is that the previous selection was of a 
line formed by the Sixaola-Tarire Rivers instead of the 
counterfort or range of mountains. But this is so obviously 
refuted by the record as to need only a few words of state- 
ment to demonstrate its error. In the first place the line 
previously fixed did not even commence with the mouth of a 
river, but began at Punta Mona, and in express terms was 
declared to proceed along the counterfort. It is true, as is 
suggested, that it was said that the line thus made bounded 
on the north the valley of the Sixaola and Tarire, but this 
declaration did not convert the mountain boundary into a 
river one. In fact such a view of the previous award could 
only be taken as the result of wholly inadmissible sur- 
mises and conjectures. It is certain, as indicated by the 
letter of Monsieur Delcasse previously quoted, that there 
was not a complete knowledge of the geography of the coun- 
try when the previous award was made. And it is also cer- 
tain that under the previous arbitration there were present 
maps showing a range of mountains from Punta Mona to 
the Cordilleras ostensibly of such a permanent and domi- 
nant character as to cause it, if existing, to constitute a 
natural frontier dividing for all practical purposes the 
country on the one side from that lying on the other. When 
this is borne in mind a reason which may have given rise 
to the selection of the mountains is not far to presume since 
the natural frontier which their presence would cause and 
the benefit to arise from the establishment of such frontier 
may well have led the mind to consider that subject from 
the point of view of statesmanship alone and therefore have 
unwittingly concentrated attention exclusively on the ad- 
vantages of such a boundary and thus have diverted atten- 
tion from the consideration of the limits which inhered in 
the submission. On the contrary the suggestion relied 
upon would necessarily compel it to be assumed that al- 
though a river boundary was selected, a mountain bound- 
ary was for some unaccountable and undisclosed reason 
named. 



32 

As it is conceded by both parties that under this treaty 
there is the power and duty to substitute for the line 
set aside, a line within the scope of the authority granted 
under the previous treaty "most in accordance with the 
correct interpretation and true intention" of the former 
award, I come to that subject. As it was impossible to 
make the previous selection of a mountain line with- 
out rejecting both the claim of Colombia (Panama) to 
the shore up to Cape Gracias a Dios and also without ad- 
versely disposing of the claim of Costa Rica to the bound- 
ary of the Chiriqui River, both of those express or im- 
plied awards remain unaffected by the fact that it is now 
held that the mountain boundary line was void. And 
by the same reasoning it follows that the initial point 
of the boundary which is to replace the rejected one must 
and can only be the mouth of the first river below Punta 
Mona, the Sixaola, since there is physically no other river 
mouth to respond to the claim made under the circum- 
stances stated. Besides, this result is inevitable because the 
mouth of such river, under the facts stated, is indubitably 
the initial point on the Atlantic of the river boundary 
contemplated by the parties from the beginning, sus- 
tained by all the facts to which I have referred as to 
negotiations, declarations and settlements and the exertion 
of governmental power by the two countries consequent 
thereon. It is true it results from the previous statement 
that the river which was relied upon by Colombia (Panama) 
as the boundary was designated by various names because, 
undoubtedly, of the want of accurate geographical knowl- 
edge which prevailed. But whatever may have been 
the Babel of names, there can be no doubt that they all 
came to be used to designate virtually one and the same 
river emptying into the Alantic at about one and the same 
place and having virtually one and the same course or 
flow from the source near the mountains to the mouth in 
the Atlantic. Nothing could serve to make this clearer than 
does the statement which was made by the Colombian Con- 
gress in 1856 which, while it described the river as the 



33 

Doraces, fixed its mouth as the one first below Punta Mona, 
and the further illustration which is afforded by the facts 
previously stated concerning the settlements at the mouth 
of the Sixaola by Colombia and the claim of authority which 
the government of that country asserted thereunder. And 
this serves to make clear what river was referred to by 
the use of the name Culebras, since the President of the 
State of Panama had in 1870 declared that that river 
was the same as the Doraces. Moreover, when the situation 
is rightly appreciated these facts readily explain why in 
the Eesolutions of the Colombian Senate which immedi- 
ately preceded the Treaty of 1880 the river upon which Co- 
lombia relied as the boundary was described as the Culebras 
and not as the Sixaola, which latter river was then known to 
be the river having its mouth the first below Punta Mona, 
and therefore was the same as the Doraces or Culebras. 
But the claim of Colombia as first formulated in 1836 in 
the organization of the territory known as Bocas del Toro, 
called the river whose mouth was fixed as the boundary, 
the Culebras. And therefore it is quite natural to assume 
that in stating the claim for the purposes of the Eesolutions 
and the controversy then pending, desirous of losing noth- 
ing of the original right and of retaining everything that 
had accrued under it by way of negotiations, admissions and 
settlements, the original description was adhered to and 
reiterated — a conclusion whose cogency is greatly reinforced 
when it is considered that years before Senor Madrid, the 
Colombian publicist, had recognized that the river which 
Colombia referred to as the Culebras was the river which 
Costa Rica referred to as the Sixaola. To adopt views 
contrary to those just stated would necessarily lead to the 
conclusion that because in formulating its claim Colombia 
in order to preserve it in its integrity had resorted to the 
definition of that claim as originally stated, it had thereby 
abandoned its right, or, what is equivalent thereto, had 
by resorting to the most efficient way of stating that claim 
acquired a non-existing, unheard of or imaginary one. 

The only remaining question then is, how is the boundary 
line to proceed from the mouth of the Sixaola River to the 



34 

Cordilleras until it joins the line terminating "beyond 
Cerro Pando"? 

On the one hand it is claimed that such line should follow 
the thalweg of the Sixaola River to the point where it joins 
with a river called the Yorquin, then follow that stream in 
a southerly direction to its source in or near the mountains 
and thence to the point "beyond Cerro Pando." On the 
other hand the contention is that the line should run by the 
Sixaola passing the entrance of the Yorquin to a point 
where the Tarire is attained and then follow that river to 
its source in the Cordilleras and thence by a line to the point 
"beyond Cerro Pando." This contention rests upon the as- 
sumption that the Sixaolo and Tarire Rivers are shown to 
be really one and the same, although designated by different 
names. It cannot be denied that the direction of the bound- 
ary river, if the Sixaola-Tarire be selected, would be wholly 
at variance with the trend of the river boundary contem- 
plated from the beginning and would project a line of 
boundary into territory over which the authority of Costa 
Rica was never questioned and thus give to Panama what 
she had never claimed. While, on the contrary, the line of 
the Sixaola-Yorquin, if followed, would in substance con- 
form in its course and direction with that which had been 
recognized as the direction of the boundary line from the 
beginning and had been virtually treated as not the subject 
matter of dispute up to and during the proceedings had un- 
der the previous treaty. And no reason is afforded for 
departing from the river line thus shown to be the bound- 
ary line within the dispute between the parties by suggest- 
ing that some other river line would most comport with the 
interests of the two governments and best subserve the pur- 
pose of a boundary. To admit such considerations would in 
substance but be indulging in views of public policy and 
public interest which would lead the mind away from the 
fundamental proposition which is here controlling, that is, 
the execution of the duty of arbitration which calls for judg- 
ment as to a dispute between the parties and affords no 
room for the application of discretion beyond the limit 
which that consideration necessarily imposes. Discretion 



35 

or compromise or adjustment, however cogent might be the 
reasons which would lead the mind beyond the domain of 
rightful power, and however much they might control if 
excess of authority could be indulged in, can find no place 
in the discharge of the duty to arbitrate a matter in dispute 
according to the submission and to go no further. No 
more fatal blow could be struck at the possibility of arbi- 
tration for adjusting international disputes than to take 
from the submission of such disputes the element of security 
arising from the restrictions just indicated. Under these 
circumstances, since the duty here is not to elucidate and 
pass upon mere abstract questions of geography, nor to sub- 
stitute mere expediency for judgment, but to determine 
what was the river claimed as the boundary by Colombia, 
declared by her to be the boundary for so many years, to 
which she asserted rights and which virtually was claimed 
to be the boundary upon which she relied prior to the entry 
into the previous treaty for arbitration and in the proceed- 
ings under that treaty, it is plain that the Sixaola-Yorquin 
is the line which should take the place of the line from 
Punta Mona along the counterfort of the Cordilleras to the 
point "beyond Cerro Pando," as declared in the previous 
award. 

In framing the award and coming to particularly specify 
the new line there may arise some difficulty because of the 
absence of precise geographical data as to the situation at 
the headwaters of the Yorquin River and therefore of the 
considerations which should control the drawing of the line 
from such headwaters to the Cordilleras. In the argument 
of this case Costa Rica stated a formal decree which it 
deemed should be entered upon the hypothesis that the 
award here made should be against the mountain line and 
in favor of the Sixaola-Yorquin line, and no objection to the 
form of such proposed decree has been made by Panama. 
Following the line to the headwaters of the Yorquin, the 
proposed decree from thence directs a stated line to the 
Cordilleras. This line rests upon the assumption that 
the headwaters of the Yorquin lie in the region of the 
northern slope of the northern watershed of a river known 



36 

as the Changuinola, and the proposed line runs from 
the headwaters of the Yorquin along such watershed to 
the Cordilleras. The situation thus assumed by the pro- 
posed decree to exist in the region of the headwaters 
of the Yorquin is in conformity with maps which are 
in the record, one of which was made by the Commis- 
sion of Engineers in this case, but which is not, however, 
the result of a survey by that body as it was not called 
upon by either party to make one. As the line thus suggested 
would seem to be in all respects the most reasonable, I shall 
adopt it with some verbal modifications as a part of the 
award to be entered, however, with the following reserva- 
tion: without prejudice to the right of the parties in case 
there should be differences between them resulting from 
contentions as to the topography of the country between the 
headwaters of the Yorquin and the Cordilleras differing 
from that above stated, to raise such question in any appro- 
priate way consistent with the provisions of the treaty 
now being enforced. 

Coming to give effect to the opinions previously stated 
and the conclusions deduced from them, the award now 
made under the authority of the treaty is as follows : 

1. That the line of boundary which was purported to be 
established by the previous award from Punta Mona to the 
main range of the Cordilleras and which was declared to be a 
counterfort or spur of mountains in said award described, be 
and the same is held to be non-existing. 

2. And it is now adjudged that the boundary between the 
two countries ''most in accordance with the correct interpre- 
tation and true intention" of the former award is a line 
which, starting at the mouth of the Sixaola Eiver in the At- 
lantic, follows the thalweg of that river, upstream, until it 
reaches the Yorquin, or Zhorquin River; thence along the 
thalweg of the Yorquin River to that one of its headwaters 
which is nearest to the divide which is the north limit of the 
drainage area of the Changuinola, or Tilorio River ; thence 
up the thalweg which contains said headwater to said divide ; 
thence along said divide to the divide which separates wat- 
ers running to the Atlantic from those running to the Pa- 



37 

cific; thence along said Atlantic-Pacific divide to the point 
near the ninth degree of north latitude "beyond Cerro Pan- 
do," referred to in Article I of the Treaty of March 17th, 
1910 ; and that line is hereby decreed and established as the 
proper boundary. 

3. That this decree is subject to the following reserva- 
tions in addition to the one above stated : 

(a) That nothing therein shall be considered as in any way 
re-opening or changing the decree in the previous arbitra- 
tion rejecting directly or by necessary implication the claim 
of Panama to a territorial boundary up to Cape Gracias a 
Dios, or the claim of Costa Eica to the boundary of the Chi- 
riqui River. 

(b) And, moreover, that nothing in this decree shall be 
considered as affecting the previous decree awarding the 
islands off the coast since neither party has suggested in 
this hearing that any question concerning said islands was 
here open for consideration in any respect whatever. 

(c) That nothing in the award now made is to be construed 
by its silence on that subject as affecting the right of either 
party to act under Article VII of the treaty providing for the 
delimitation of the boundary fixed if it should be so 
desired. 



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